178

THE UNIVERS·ITY OF SYDNEY

OPEN DAY,. . SATURDAY 2B ·JULY ·19 BO

LORD DENNING LECTURE

LORD DENtHNGMID JUDICIAL IMPERIALISr1

The Han Mr Justice M D Kirby

Chairman of the Australian Law Reform Commission

July 19BO

j _.

178

THE UNIVERS·ITY OF SYDNEY

OPEN DAY,. . SATURDAY 2B ·JULY ·19 SO

LORD DENNING LECTURE

LORD DENtHNGA~m JUDICIAL IMPERIALISt1

The Hon Mr Justice M D Kirby

Chairman of the Australian Law Reform Commission

July 1980

THE UNIVERSITY OF SYDNEY

OPEN DAY, SATURDAY 26 JULY 1980

LORD DENNING LECTURE

LORD DENNING AND JUDICIAL IMPERIALISM

The Hon Mr Justice M.D. Kirby

Chairman of the Australian Law Reform Commission

JUDICIAL IMPERIALISM

In' an important address to the Australian Institute of Political Science in 1978,

Professor Gordon Reid,the Pro-Vice Chancellor of the' University of Western Australia

diagnosed what he feEl~d was a new disease ~f the body politic.! The ,bacillus he

. labelled 'judicial imperialism I, The symptoms' included. the increasing use being made of

jUdges throughout Australia for. what he saw as eSsentially the functions of the Executive

Gqvernment. He listed, amongst other things, the appointment of judges to head Royal

Commissions, Committees of Inquiry, the "Commonwealth Grants Commission, Australian

Security Bnd Intelligence Organisation, the Commonw'ealth Legal Aid Commission, the

Law Reform Commission, the Administrative AQpeals Tribunal and s.o 6n. He might have

added. to' the list the appointment of a judge as an ambassadorZ and the extensive use

made, in' some States of. Australia at least,. of jUdges in extra curial activities. in

Professor Reid's opinion this practice is .'fraught w~th dangers for a fearlessly independent

jUdiciary'. After mentioning. ·the . establishment of a number of new Federal Courts,

Professor Reid went on:

And as if this was not radical en0tlgh, we also ha've 'new statutes providing for a

network of Legal Aid Commissions throughout Australia, a n,ewly cr~ate.d and

active federal Law R.eforrn Commission and iegislation is now before the

Parliament for a Human Rights Commission ... The Feder~l Judiciary has made

obvious territorial gains. in the developments just explained ..3

THE UNIVERSITY OF SYDNEY

OPEN DAY, SATURDAY 26 JULY 1980

LORD DENNING LECTURE

LORD DEf'INING AND JUDICIAL IMPERIALISM

The Hon Mr Justice M.D. Kirby

Chairman of the Australian Law Reform Commission

JUDICIAL IMPERIALISM

In' an important address to the Australian Institute of Political Science in 1978,

Professor Gordon Reid, the Pro-Vice Chancellor of the' University of Western Australia

diagnosed what he fefired was a new disease ~f the body politic.! The ,bacillus he

. labelled 'judicial imperialism', The symptoms' included. the increasing use being made of

judges throughout Australia for. what he saw as eSsentially the functions of the Executive

Gqvernment. He listed, amongst other things, the appointment of judges to head Royal

Commissions, Committees of Inquiry, the "Commonwealth Grants Commission, Australian

Security Bnd Intelligence Orgariisation, the Commonw'ealth Legal Aid Commission, the

Law Reform Commission, the Administrative AQpeals Tribunal and s.o 6n. He might have

added to the list the apQointment of a judge as an ambassadorZ and the extensive use

made, in' some States of. Australia at least,. of judges in extra curial activities. in

Professor Reid's opinion this practice is .'fraught w~th dangers for a fearlessly independent

judiciary'. After mentioning. ·the . establishment of a number of new Federal Courts,

Professor Reid went on:

And as if this was not radical enotlgh, we also ha·ve 'new statutes providing for a

network of Legal Aid Commissions throughout Australia, a n,ewly cr~ate.d and

active federal Law R.eforrn Commission and iegislation is now before the

Parliament for a Human Rights Commission ... The Feder~l Judiciary has made

obvious territorial gains)n the developments just explained .. 3

1,

Professor Reid acknowleged that many, including judges, regard a strict division of

judicial functions, completely divorced from other important pUblic and policy making

functions, as unnecessarily fundamentalist adherence to the notion of Montesquieu's

injunction that liberty requires a separation of legislative, executive and judicial powers

of government. Although, in Australia, the formal separation of judicial activities from

those of the executive and legislature is required by the Constitution4 and has led to

some odd and inconvenient results.S Neither in Britain or Australia has there ever been

a complete sel?aration of powers. In Australia, the Executive (the Cabinet) actually sits in

the Legislature. Judges, as personae designatae perform Executive functions. In the

. celebrated case of Brown and Fitzpatrick, Parliament even conducted a trial of sorts. 6

English speaki,og countries have a tendency to defy granij political theory. So it is with the

s€l?aration of powers. In England, without a written constitution, which enshrines the

separation of powers, there is even less stead~ adherence to Montesquieu's grand design.

Lord Denning put it well:

At one time the theorists said that there should be a complete separation

between the legislative, the executive and the jUdicial powers. That theory in

England has never been carried to its logical extent. There is. here no rigid

separation between the legislative and the executive powers. The Ministers who

exercise the executive powers also -direct a great deal of ~he legislative power

of P8rliament,:,~but they are subject to many checks. And one of the most

important ch~~{s is the independence of the jUdges.7

Lord Denning might have gone on to mention that the highest judicial officer of England,

the Lord Chancellor, and the other membe~s of the highest court of that country sit in

Parliament in the Hous.e of Lords. Indeed, the Lord Chancellor is a member of the

Executive Government and thus spans, in his person, the three arms. of Government:

legislative, executive and jUdicial.

Professor Gordon Reid1s warning about ljudicial imperialism' caused ~ deal of

heart burning, not least amongst the jUdiciary itself. Articles were written in the learned

journals8 eVidencing the spectrum of opinions held on the SUbject: ranging from the

conservative view that jUdges should do nothing but jUdge to the mildly activist view that

the jUdiciary should cautiously accept a wider range of function.s, relevant to the problems

of today's society. A distinguished Australian judge, 'Mr Justi.ce Brennan, balanced the

risks involved in extending the role of judges beyond the traditiona~ ,~u.nction, against the

peril that the jUdiciary might, if it were to stand still, frozen in t,he tas~s of earlier times,

bec0TI:le irrelevan~ to the community it serves.

1 ,

- 2 _.

Professor Reid acknowleged that many, including judges, regard a strict division of

judicial functions, completely divorced from other important public and policy making

functions, as unnecessarily fundamentalist adherence to the notion of Montesquieu's

injunction that liberty requires a separation of legislative, executive and judicial powers

of government. Although, in Australia, the formal separation of judicial activities from

those of the executive and legislature is required by the Constitution4 and has led to

some odd and inconvenient results.S Neither in Britain or Australia has there ever been

a complete s€!?aration of powers. In Australia, the Executive (the Cabinet) actually sits in

the Legislature. Judges, as personae designatae perform Executive functions. In the

. celebrated case of Brown ilnd Fitzpiltrick, Parliament even conducted a trial of sorts. 6

English speaki.ng countries have a tendency to defy granij political theory. So it is with the

separation of powers. In England, without a written constitution, which enshrines the

separation of powers, there is even less stead~ adherence to Montesquieu's grand design.

Lord Denning put it well:

At one time the theorists said that there should be a complete separation

between the legislative, the executive and the judicial powers. That theory in

England has never been carried to its logical extent. There is. here no rigid

separation between the legislative and the executive powers. The Ministers who

exercise the executive powers also ·direct a great deal of ~he legislative power

of Parliament, .. ~but they are subject to many checks. And one of the most

important Ch~~{s is the independence of the judges. 7

Lord Denning might have gone on to mention that the highest judicial officer of England,

the Lord Chancellor, and the other membe~s of the highest court of that country sit in

Parliament in the Hous.e of Lords. Indeed, the Lord Chancellor is a member of the

Executive Government and thus spans, in his person, the three arms. of Government:

legislative, executive and judicial.

Professor Gordon Reid's warning about 'judicial imperialism' caused ~ deal of

heart burning, not least amongst the jUdiciary itself. Articles were written in the learned

journals8 eVidencing the spectrum of opinions held on the subject: ranging from the

conservative view that judges should do nothing but judge to the mildly activist view that

the judiciary should cautiously accept a wider range of function.s, relevant to the problems

of today's society. A distinguished Australian judge, 'Mr Justi.ce Brennan, balanced the

risks involved in extending the role of judges beyond· the traditiona~ .~u.nction, against the

peril that the judiciary might, if it were to stand still, frozen in t,he tas~s of earlier times,

beco~e irrelevan~ to the community it serves.

-3-

There are no absolute or universal rules ~ .. The answers depend u[)on where the

balance is struck between the necessity to draw upon judicial skills in non

traditional ways) and the risk of thereby diminishing confidence. An undue

timorousness in dra~ing u~)Qn judicial skills leads to the development of problem

SOlvin"g machinery that is less. satisfactory than it should be and to a sense that

the judiciary is unduly irrelevant to many issues of community concern. Too

adventurous an approach requires the judges to expose themselves to an

assessment - political or otherwise controversial ':' and to a consequent loss of

confidence i~ the judiciary and in jUdicial institutions. 9

Where the function proposed is significantly different from. the, traditional

function, the risk can be justified, but can only be justified, by the urgency of

the community's needs to use the judges' skills ... Caution is need.ed in moving

into the non traditional area, measuring the risks by the yardstick of the

traditional function and there will be some un~ished for controversy on the

way. But the risks must, be run,or the institution of the jUdiciary may lose its

relevance or, at the least, fall short of-discharging fully the functions which the

community would co~mit to it. 10

Even within ~he traditional functions, the 'fairy tale' that jUdges do n~t make the law, dies.

hard. In the age of the elected Parliament and the responsible Executive, it of.fends the

political theory of many, that the judiciary should be anything more than an automaton,

blindly and faithfully searching' out pre-existing rules and then applying them

remorselessly to the facts as found. Sometimes this is an apt description of the jUdicial

role. Indeed generally this is what jUdges do and will continue to do as the law they apply

becomes overwhelmingly statute law, made by. Parliament. But there is still an area for

jUdicial creatiVity. It- is an area which should be openly acknowledged: without shame,

deception of hypocrisy. It is this area which "has been an essentiai ingredient of the

success of the 'common law of England: a legal system- whose pragmatic qualities have

assured its triumph in the laws governing more than a quarter of mankind. Most judges

have great professional skills in the application of statute and precedent. Some few have

great creative talent in the development of old precedents and in their eXl?ansion and

application to ne~ situations. Probably no living jUdge of the common law is more famous

as an exponent of 'its creativity, than Lord Denning. Resolutely, he has set his face against

abject subservience of the -jUdiciary to other law makers. His philosophy, he once

described in a jUdgment thus:

What is the argu~ent on the other side? Only this, that no case has been found

in Which it has been done before. That argument does- not appeal to me in the

least. If we never do anything which has not been done before, we shall never

get anywhere. The law will stand still whilst the rest of the world goes oni and

that will be bad for both. l1

-3-

There are no absolute or universal rules ~ .. The answers depend ur?0n where the

balance is struck between the necessity to draw upon judicial skills in non

traditional ways) and the risk of thereby diminishing confidence. An undue

timorousness in dra~ing u~)Qn judicial skills leads to the development of problem

SOlvin"g machinery that is less. satisfactory than it should be and to a sense that

the judiciary is unduly irrelevant to many issues of community concern. Too

adventurous an approach requires the judges to expose themselves to an

assessment - political or otherwise controversial ':' and to a consequent loss of

confidence i~ the judiciary and in judicial institutions. 9

Where the function proposed is significantly different from. the, traditional

function, the risk can be justified, but can only be justified, by the urgency of

the community's needs to use the judges' skills ... Caution is need.ed in moving

into the non traditional area, measuring the risks by the yardstick of the

traditional function and there will be some un~ished for controversy on the

way. But the risks must, be run, or the institution of the judiciary may lose its

relevance or, at the least, fall short of-disCharging fully the functions which the

community would co~mit to it. 10

Even within ~he traditional functions, the 'fairy tale' that judges do n~t make the law, dies.

hard. In the age of the elected Parliament and the responsible Executive, it of.fends the

political theory of manY1 that the judiciary should be anything more than an automaton,

blindly and faithfully searching' out pre-existing rules and then applying them

remorselessly to the facts as found. Sometimes this is nn apt description of the judicial

role. Indeed generally this is what judges do and will continue to do as the law they apply

becomes overwhelmingly statute law, made by. Parliament. But there is still an area for

judicial creatiVity. It- is an area which should be openly acknowledged: without shame,

deception of hypocrisy. It is this area which "has been an essentiai ingredient of the

success of the 'common law of England: a legal system- whose pragmatic qualities have

assured its triumph in the laws governing more than a quarter of mankind. Most judges

have great professional skills in the application of statute and precedent. Some few have

great creative talent in the development of old precedents and in their eXl?ansion and

application to ne~ situations. Probably no living judge of the common law is more famous

as an exponent of 'its creativity, than Lord Denning. Resolutely, he has set his face against

abject subservience of the -judiciary to other law makers. His philosophy, he once

described in a judgment thus:

What is the argu~ent on the other side? Only this, that no case has been found

in Which it has been done before. That argument does- not appeal to me in the

least. If we never do anything which has not been done before, we shaH never

get anywhere. The law will stand still whilst the rest of the world goes on; and

that will be bad for both. ll

-4-

This banner of Lord Denning's was raised as long ago as 1954. Defiantly, it has been

hoisted many times since. Of late, critics have begun to suggest that Lord Denning shows

symptoms of another form of 'judicial imperialism', namely the assertion of a too creative

role for the judiciary in the courts. Editorials in the Times 'complain 'Lord Denning bowls

too wide,.12 Upset by a ruling that th.e media are not immune from the obligation to

disclose their sources to the courts, the norr~al1y sober Observer complained under 8

headline ''';hy Denning is an Ass'.13

Plainly Lord Denning is a charismatic figure of the law, the more outstanding

because his profession has a long tradition of avoiding pUblic controversy Bnd notoriety.

Who is this famous man? What lessons do his views have for law reform in Australia?

LORD DENNING THE MAN

Alfred Thompson D~nningwas born in 1899, the son of a draper in the village of

Whitchurch, where he still lives. He was one of five brothers. One became a General,

another ro.se to be an Admiral. Lord Denning began life as a teacher but later returned to

Oxford and a pursuit of the law.

Two of his brothers were killed in the first World War. One, Jack; the eldest

son, died leading· his men at Flanders. The other, Gordon, a saiior, was killed in the Battle

of Jutland, aged 19. In his latest book The Due Process of Law, Lord Denning finishes with

a personal epilogue, written in a special style of English prose of which he is a modern

master:

I remember the telegram coming. Mother opened it with -trembling fingers.

'Deeply regret ..• died of wounds'. She fainted to the floor. A few days later

came a letter Which was found in his valise after his death•. Mother and father ~

poor dears -, they were to lose another son before that war was over. '" Reg is

now a General - retired. Norman is now an Admiral - retired. But Jack and

Gordon - they were the best of us..• 'The poppies slipped from my hand to the

floor. Eyes filled with tears. It was the eve of Remembrance Day.14

Lord Denning himself fought at Picardy. 'Only there for the last none months. Too you'ng

to go before. I came through unhurt,.15 He won scholarships and First Class Degrees in

Mathematics and Jurisprudence. In 1923 he was called to the Bar. He soon learned that

the law and justice were not always t)1e same thing. C;ses came to him for opinion. In

accord{lnce with the ,binding authority of the highest courts, they required conclusions

that struck him as unjust. 'The House of Lords had decided it. That was the end of the

matter' he later wrote.

-4-

This banner of Lord Denning's was raised as long ago as 1954. Defiantly, it has been

hoisted many times since. Of late, critics have begun to suggest that Lord Denning shows

symptoms of another form of 'judicial imperialism', namely the assertion of a too creative

role for the judiciary in the courts. Editorials in the Times 'complain 'Lord Denning bowls

too wide,.12 Upset by a ruling that th.e media are not immune from the obligation to

disclose their sources to the courts, the norr~al1y sober Observer complained under 8

headline ,,,thy Denning is an Ass'.13

Plainly Lord Denning is a charismatic figure of the law, the more outstanding

because his profession has a long tradition of avoiding public controversy and notoriety.

Who is this famous man? What lessons do his views have for law reform in Australia?

LORD DENNING THE MAN

Alfred Thompson D~nning was born in 1899, the son of a draper in the village of

Whitchurch, where he still lives. He was one of five brothers. One became a General,

another ro.se to be an Admiral. Lord Denning began life as a teacher but later returned to

Oxford and a pursuit of the law.

Two of his brothers were killed in the first World War. One, Jack; the eldest

son, died leading· his men at Flanders. The other, Gordon, a saiior, was killed in the Battle

of Jutland, aged 19. In his latest book The Due Process of Law, Lord Denning finishes with

a personal epilogue, written in a special style of English prose of which he is a modern

master:

I remember the telegram coming. Mother opened it with· trembling fingers.

'Deeply regret ..• died of wounds'. She fainted to the floor. A few days later

came a letter Which was found in his valise after his death •. Mother and father ~

poor dears -, they were to lose another son before that war was over. '" Reg is

now a General - retired. Norman is now an Admiral - retired. But Jack and

Gordon - they were the best of us ..• The poppies slipped from my hand to the

floor. Eyes filled with tears. It was the eve of Remembrance Day.14

Lord Denning himself fought at Picardy. 'Only there for the last none months. Too you-ng

to go before. I came through unhurt,.15 He won scholarships and First Class Degrees in

Mathematics and Jurisprudence. In 1923 he was called to the Bar. He soon learned that

the law and justice were not always t)"le same thing. C;ses came to him for opinion. In

accord{lnce with the .binding authority of the highest courts, they required conclusions

that struck bim as unjust. 'The House of Lords had decided it. That was the end of the

matter' he later wrote.

-5-

Cases of apparent injustice qisturbed Denning. He was later' to describe binding

principles as 'fals~ idols which disfigured the temple ,of the t"aw l• In the fu"llness of his

career, he was to come to a position where he could do something about it.

In 1944 he was appointed a jUdge. Accordingly he has served in jUdicial office

for 36 years. He was elevated to the English Court of Appeal in 1948 and to the HOlls/,; of

Lords in 1957. In 1962 a vacancy occurred in the position of Master of the Rolls, the

(?residing judge of the Court ot Appeal. Denning took this position. There he remains to

this day. At the. age of 81, he shows no diminution in intellectual vigour. If anything, he

shows an increasing reformist zeal. His appeals to the 'broad .rule of justice itself'

becomes, if anything, more frequent and more insistent.

For a judge to take this course under our sys~em is unusual. For the presiding

judge of England's second highest court to do so, and. frequently to carry his colleagues

with him -is nothing short of remarl<able. He has his critics. They are not confined to-the

clubs where gather .the judges"and lawyers, or the. boardrooms of newspapers' offices in

Whitehall or otller places where disappointed or disaffected litigants collect. But no one in

the common law world can ignore the ext~aordinary impact of the intellect. of this

splendid man.

STABILITY IN REFORM ."./

Lord Denning illustrates the difficulty facing all law reformers whether jUdicial

or otherwise. The law is a force for stability and predictability in society. People need to

know what the law is so that they can live peacefully together without resort to violence

or expensive litigation. But times change. The inventions of science .and technology

present challen-ges to the law which often speaks in the language of a previous time. Moral

and social attitudes change rendering previously accepted values suspect· or unpalatable.

Well established princ)ples which may have endured for centuries can lead to results that

strike the modern judge as unjust but the law, nonetheless;

The original genius of the common law. was the capacity to adapt rules to meet

·differing social conditions. The advent of the -representative Parliament has tended· to

make judges, inclUding appeal judges,reticent about inventing. new principles of law -or

overturning decisions that have stood the test of time. ~We do not make heresy more

attractive because it is dignified by the name of reform', declared Viscount Simonds, one

of Lord Denning's critics. 'It is eyen possible that we are oof wiser than our ancestors. It is

for Parliament to determine whether there should be a change in th~ law and what the

change shouid be'.

-5-

Cases of apparent injustice qisturbed Denning. He was later' to describe binding

principles as 'fals~ idols which disfigured the temple ,of the t"aw'. In the fu"llness of his

career, he was to come to a position where he could do something about it.

In 1944 he was appointed a judge. Accordingly he has served in judicial office

for 36 years. He was elevated to the English Court of Appeal in 1948 and to the Hous/=; of

Lords in 1957. In 1962 a vacancy occurred in the position of Master of the Rolls, the

(?residing judge of the Court ot Appeal. Denning took this position. There he remains to

this day. At the. age of 81, he shows no diminution in intellectual vigour. If anything, he

shows an increasing reformist zeal. His appeals to the 'broad .rule of justice itself'

becomes, if anything, more frequent and more insistent.

For a judge to take this course under our sys~em is unusual. For the presiding

judge of England's second highest court to do so, and. frequently to carry his colleagues

with him -is nothing short of remarl<able. He has his critics. They are not confined to-the

clubs where gather the judges"and lawyers, or the boardrooms of newspapers' offices in

Whitehall or otller places where disappointed or disaffected litigants collect. But no one in

the common law world can ignore the ext~aordinary impact of the intellect. of this

splendid man.

STABILITY IN REFORM . " ./

Lord Denning illustrates the difficulty facing ail law reformers whether judicial

or otherwise. The law is a force for stability and predictability in society. People need to

know what the law is so that they can live peacefully together without resort to violence

or expensive litigation. But times Change. The inventions of science .and technology

present challen-ges to the law which often speaks in the language of a previous time. Moral

and social attitudes change rendering previously accepted values suspect· or unpalatable.

Well established princ)ples which may have endured for centuries can lead to results that

strike the modern judge as unjust but the law, nonetheless.-

The original genius of the common law. was the capacity to adapt rules to meet

·differing social conditions. The advent of the -representative Parliament has tended' to

make judges, including appeal judges, reticent about inventing. new principles of law -or

overturning decisions that have stood the test of time. ~We do not make heresy more

attractive because it is dignified by the name of reform', declared Viscount Simonds, one

of Lord Denning's critics. 'It is eyen possible that we ar<;! nof wiser than our ancestors. It is

for Parliament to determine whether there should be a change in th~ law and what the

change shouid be',

/

-6-

Denning suffers no tongue-tied inhibitions just because Parliament can change

the law. The fact is that Parliaments, have generally showed little interest in the reform

of wide areas of the lew. Individual, small injustices may not amount to many votes or

much pUblic intere~t. Repeatedly in his thirty three years as a judge, Denning has

expre~sed impatience with the notion that the judge's duty is bUn.dly to follow precedents

Of, if there is none, to do nothing, leaving it to the legislators to act.

His views in 1954, I have already cited. Mpre recently in October 1979

addressing the National Conferenc.e of the English Law Society he against took his stand

for the jUdicial role in law making:

Law reform .•. should not be left solely to the Law Commissions. There is a

great movement today which says that jUdges -should not do anything to reform

the law, that they should treat their old cases as binding u~on themselves and

d~ nqthing. I give you an example •.. [in a recent case] I said there Should be a

radical reappraisal of our system of assessing damages for personal injuries and,

in the House of Lords, Lord Scarman giving the one judgement said:

rYes I agree with Lord Denning there ought to be a radical~

reappraisal.'

,. . c/o.'But~ofi to say that we will noyt. We will ~eave.it to .other bodies. The

ta"'1can do all this .and eventually report. ~ow long will it take, will it ever take

place? I would suggest that there i~ still a field for jUdge~made law in our land.

Of course, I do not get my own way as a rule. 16

Certaintly, an aspect of the original com·mon law-system was constant law reform: judges

and lawmakers working together to mould principles to fit ~he new circumstances of the

case before. them. Such inventiveness is not now common, whether in England or in

Australia. Lord Denning again:

Writing in the Times of 5 January 1977, Sir Les~ie Scarman said: 'the past 25

years will not be forgotten in our legal history._ They are the age of legal.aid,

law reform and Lord Denning'. I ani gratified by the tribute but I feel that many

of my endeavours have failed - at any rate so far. The strict constructionists

still hold their fortress. ~he officious bystander still dominates. the field. The

Court of Appeal is still bound hand and foot. The powerful still abuse their

. powers Without restraint. 17

/

-6-

Denning suffers no tongue-tied inhibitions just because Parliament can change

the law. The fact is that Parliaments, have generally showed little interest in the reform

of wide areas of the law. Individual, small injustices may not amount to many votes or

much public intere~t. Repeatedly in his thirty three years as a judge, Denning has

expre~sed impatience with the not-ion that the judge's duty is blin.dly to follow precedents

Of, if there is none, to do nothing, leaving it to the legislators to act.

His views in 1954, I have already cited. Mpre recently in October 1979

addressing the National Conferenc.e of the English Law Society he against took his stand

for the judicial role in law making:

Law reform .•. should not be left solely to the Law Commissions. There is a

great movement today which says that judges -should not do anything to reform

the law, that they should treat their old cases as binding u~on themselves and

d~ nqthing. I give you an example •.. [in a recent case] I said there Should be a

radical reappraisal of our system of assessing damages for personal injuries and,

in the House of Lords, Lord Scar man giving the one judgement said:

rYes I agree with Lord Denning there ought to be a radical ~

reappraisal.'

•• " " c/o . But~ ofi to say that we will noyt. We will ~eave.it to .other bodies. The

ia"'o/can do all this .and eventually report. ~ow long will it take, will it ever take

place? I would suggest that there i~ still a field for judge~made law in our land.

Of course, I do not get my own way as a rule. 16

Certaintly, an aspect of the original com·mon law· system was constant law reform: judges

and lawmakers working together to mould principles to fit ~he new circumstances of the

case before. them. Such inventiveness is not now common, whether in England or in

Australia. Lord Denning again:

Writing in the Times of 5 January 1977, Sir Les~ie Scarman said: 'the past 25

years will not be forgotten in our legal history •. They are the age of lega1.aid,

law reform and Lord Denning'. I am gratified by the tribute but I feel that many

of my endeavours have failed - at any rate so far. The strict constructionists

still hold their fortress. ~he officious bystander still dominates. the field. The

Court of Appeal is still bound hand and foot. The powerful still abuse their

. powers Without restraint. 17

-7-

This is not to say that Denning has not tried. Certainly, he has never been prepared to

leave it to law reform commissions and bureaucrats to improve laws which in his view

~udges could perfectly well attend to. In one case, for example, he found that courts

~hould imply into a tenancy agreement, which said nothing about the sUbject, an obligation

upon, the landlord to take care that lifts and staircases were reasonably fit for the use of

tenants and their visitors.

I am confirmed in this view by the fact tha.t the Law Commission in their

codification of the law of ,landlord and tenant, recommend that some such

terms should be implied by statute.' But I do not think we need "to wait for a

statute. We are well able to imply it now in the ~arne way as jUdges have

implied terms for centuries. Some people seem to think that now there is a Law

Commission, the jUdges should leave it to them to (;lut right any defect and to

make any new development. The judges must no longer playa constructive role.

They must be automatons applying the existing rule. Just think what this means.

The law must stand still until the Law Commission has reported and Parliament

passed an Act on it;' nnd, meanwhile, every litigant must have his case decided

by the dead hand of the past. I decline to reduce the judges to such a sterile

role so I hold here that there is.clearly to be implied some such term as the Law

Commission recommends:18

This passage gives the flavour ~d texture of this extraordinary judge's style. Short

sentences. Pungent phrases. Headings in his judgments ,to guide the reader through his

reasoning. Even his critics and enemies acknowledge his skill in handling the legal

techniques and in presenting them. in pr9Se which is startling because of its contrast to the

normal style in which jUdgments-are written.

Of course not everybody, ap(;lroves his very special way of writing English. A

confessedly 'carping', review of his 1979 book 'The Discipline of the Law is rather severe:

The style is unmistakable. An~ unmemorable. JUdicial'staccato. Not a cadence

in sight. I wonder if that is the unfortunate consequence of writing all those

longhand notes in the early days on the Bench while those below waited for the

, pen to be laid down, for the lye-esT, for the raised eyes.20

To show that these matters are simply matters of taste., another reviewer of the same

book asserts 'the book is intensely readab1e,.2l There is little doubt that elegant or not,

it is a prose style which is powerful for its simplicity and directness. It is the pose style of

an evangelist and propagandist: appellations which Lord Denning would not shun.

}-

, , ,

! ,

l l~~,·

-7-

This is not to say that Denning has not tried. Certainly, he has never been prepared to

leave it to law reform commissions and bureaucrats to improve laws which in his view

~udges could perfectly well attend to. In one case, for example, he found that courts

~hould imply into a tenancy agreement, which said nothing about the subject, an obligation

upon, the landlord to take care that lifts and staircases were reasonably fit for the use of

tenants and their visitors.

I am confirmed in this view by the fact that the Law Commission in their

codification of the law of ,landlord and tenant, recommend that some such

terms should be implied by statute.' But I do not think we need 'to wait for a

statute. We are well able to imply it now in the ~ame way as judges have

implied terms for centuries. Some people seem to think that now there is a Law

Commission, the judges should leave it to them to put right any defect and to

make any new development. The judges must no longer playa constructive role.

They must be automatons applying the existing rule. Just think what this means.

The law must stand still until the Law Commission has reported and Parliament

passed an Act on it;· and, meanWhile, every litigant must have his case decided

by the dead hand of the past. I decline to reduce the judges to such a sterile

role so I hold here that there is.clearly to be implied some such term as the Law

Commission recommends:18

This passage gives the flavour ~d texture of this extraordinary judge's style. Short

sentences. Pungent phrases. Headings in his judgments ,to guide the reader through his

reasoning. Even his critics and enemies acknowledge his skill in handling the legal

techniques and in ~resenting them. in pr9Se which is startling because of its contrast to the

normal style in which judgments-are written.

Of course not everybody· ap~roves his very special way of writing English. A

confessedly 'carping', review of his 1979 book 'The Discipline of the Law is rather severe:

The style is unmistakable. An~ unmemorable. JUdicial'staccato. Not a cadence

in sight. I wonder if that is the unfortunate consequence of writing all those

longhand notes in the early days on the Bench while those below waited for the

. pen to be laid down, for the Iye-es', for the raised eyes.20

To show that these matters are simply matters of taste., another reviewer of the same

book asserts 'the book is intensely readable,.2l There is little doubt that elegant or not,

it is a prose style which is powerful for its simplicity and directness. It is the pose style of

an evangelist and propagandist: appellations which Lord Denning would not shun.

-8-

DENNING THE REFORMER

Needless t.o say Lord Denning's view of his role has frequently driven him into

dissent from other more orthodox jUdges. Even where, in the Court of Appeal, he has

carried the day, he has sometimes been reversed in the House of Lords in chilling

language. One of his abiding concerns has been to reform the law of contract. He has

waged a battle over a quarter of a century against the unfair exclusion of claims by

written terms, sometimes disguised on the back of a ticket or form. But to his 1951 plea

for the law to look at the reality of contracting relationships, the Lords answered

menacingly. lPhrases occur', said Lord Simon "which give us sonie concert. Lord Simonds

added 'It is no doubt essential to the life of the common law that its principles should be

~dapted to meet fresh circumstances and needs. But I respectfuny demur to saying that

there has been or need be any change in the well known principles of ,construction of

contracts'.

Undeterred, Denning has gone on to effect important changes in contract law,

always guided by justice and commercial mor~lity, as he saw it. But his enthusiasm has

not been limited to contract cases. He has helped to dispose of the principle that a

hospital was not. liable for the negligence of its professional staff. He decided the first of

many cases in which a deserted wife was held entitled 'to remain to the matrimonial home.

In 1951 he wrote a famour dissenting jUdgment lamenting the ,calamatous exception from

the law of negligence which relieved many, inclUding professional advisors, from actions

for damages for loss caused by negligent as distinct from fraudulen~ misrepresentations.

He did not hesitate to dissent, although he was then but recently added to the Court of

Appeal. The language he used was typical:

This -argument about the novelty of the action, does not appelll to me in the

least..!t has been put forward in all the great cases which have been milestones

~f progress in our law. In each of these cases the judges were divided in opinion.

On th~ one side there were timorous souls who were fearful of allowing a new

cause of action. On the other side there ·were the bold spirits who were ready to

allow it if justice so required. It was fortunate for the common law that the

progressive view prevailed,.2?

Although in 1951 the progressive view did not prevail, in 1963 the House of Lords

introduced a limited duty to care for persons who tak~ upon themselves to supply

'information or advice to people whom they 'know will p1l1ce reliance on, it.23 Denning's

dissent of 195.1 became the rule in 1963 and has now been substantially adopted in

Australia.24

-8-

DENNING THE REFORMER

Needless t,o say Lord Denning's view of his role has frequently driven him into

dissent from other more orthodox judges. Even where, in the Court of Appeal, he has

carried the day, he has sometimes been reversed in the House of Lords in chilling

language. One of his abiding concerns has been to reform the law of contract. He has

waged a battle over a quarter of a century against the unfair exclusion of claims by

written terms, sometimes disguised on the back of a ticket or form. But to his 1951 plea

for the law to look at the reality of contracting relationships, the Lords answered

menacingly. 'Phrases occur', said Lord Simon "which give us sonie concert. Lord Simonds

added 'It is no doubt essential to the life of the common law that its principles should be

~dapted to meet fresh circumstances and needs. But I respectfully demur to saying that

there has been or need be any change in the well known principles of -construction of

contracts'.

Undeterred, Denning has gone on to effect important changes in contract law,

always guided by justice and commercial mor~1ity, as he saw it. But his enthusiasm has

not been limited to contract cases. He has helped to dispose of the principle that a

hospital was not liable for the negligence of its professional staff. He decided the first of

many cases in which a deserted wife was held entitled-to remain to the matrimonial home.

In 1951 he wrote a famour dissenting judgment lamenting the ,calamatous exception from

the law of negligence which relieved many, including professional advisors, from actions

for damages for loss caused by negligent as distinct from fraudulen~ misrepresentations.

He did not hesitate to dissent, although he was then but recently added to the Court of

Appeal. The language he used was typical:

This -argument about the novelty of the action_ does not appelll to me in the

least.)t has been put forward in all the great cases which have been milestones

~f progress in our law. In each of these cases the judges were divided in opinion.

On th~ one side there were timorous souls who were fearful of allowing a new

cause of action. On the other side there ·were the bold spirits who were ready to

allow it if justice so required. It was fortunate for the common law that the

progressive view prevailed,.2?

Although in 1951 the progressive view did not prevail, in 1963 the House of Lords

introduced a limited duty to care for persons who tak~ upon themselves to supply

'information or advice to people whom they -knoW will plllce reliance on, it.23 Denning's

dissent of 195.1 became the rule in 1963 and has now been substantially adopted in

Australia.24

-9-

In Australia in the recent past our High Court has demonstrated a most un

Denning like resistance to the notion that the courts should modernise old common law

rules. Four cases come to mind:

In 1979 it was held that a person convicted of a capital felony in N.S. W. (Darcy

Dugan) could not sue in court for an alleged libel. He was 'attainted' _or 'corrupted

of the blood'. He had lost his civil rights to approach the courts. This rule,

developed when such felons were invariably hanged would not be modified for

today's society and modern perceptions of civil rights and prisoners' rights. Dugan

v. Mirror Newspapers Ltd (1979) 22 ALR 439.

In 1979 the Court refused to disturb the principle that owners of straying cattle

and sheep adjoining the' highway are under no duty to fence their property. A. car

driver of a fast moving vehicle on a motor highway near Adelaide was killed when

she collided with straying sheep. 'The rule ,of law established origin,aUy in village

England (where the fastest vehicle was ·the squire's trap) would not be disturbed for

a nation of great distances, motor highways and the internal qombustion engine.

State Government Insurance Com. v. Trigwell (1979) 25 ALR 67.

In 1979 it was held that a prisoner, McInnis, forced to defend himself in a rape

trial, was not enti,tled to legal representation as of right. He was merely privileged

to apply for "lega·(;i~I. His barrister' h{'l~ droppecl"the case the afternoon before the

trial when legal assistance was rdused. McInnes was convicted. Most civilized

countries insist on legal representation 8S the price of a fair trial ~n serious

criminal cases. It was felt that this was not a requirement of Australian law and

would not be made so. McInnis v. The Queen (1979-80) 27. ALR 449. (1980) 54 ALJR

122.

* In 1980 the Cpurt declined to extend the law as to the 'standing' of a party to

challenge the operation of the Iwasaki tourist resort in Queensland. The Australian

Conservation Foundation challenged the legality of the Reserve Bank and other

approvals. Although deciding which litigants it will hear is very much the busi,ness

ofa court, it ·was held that the duties imposed under the relevant Federal

legislation were owed to the whole community but were .not enforcable by private

individuals or groups. Two Justices pointed out that revision of the law of standing

had been specifically referred .to the Australian Law Reform Commission.

Australian Conservation Foundation v. Commonwealth (1980) 28 ALR 257.

Through the refusals to develop' and modernise the common law. in the. cases mentioned

(an~ other cases) runs a common theme. It is expressed in the majority jUdgments (Justice

Murphy dissented in each of the above cases). It is that well established legal rules should

not be unmade by un'elected J~dges; but only by Parliament.

- ~ -­

r K , i

I r r l i i , i

-9-

In Australia in the recent past our High Court has demonstrated a most un

Denning like resistance to the notion that the courts should modernise old common law

rules. Four cases come to mind:

In 1979 it was held that a person convicted of a capital felony in N.S. W. (Darcy

Dugan) could not sue in court for an alleged libel. He was 'attainted' _ or 'corrupted

of the blood'. He had lost his civil rights to approach the courts. This rule,

developed when such felons were invariably hanged would not be modified for

today's society and modern perceptions of civil rights and prisoners' rights. Dugan

v. Mirror Newspapers Ltd (1979) 22 ALR 439.

In 1979 the Court refused to disturb the principle that owners of straying cattle

and sheep adjoining the' highway are under no duty to fence their property. A car

driver of a fast moving vehicle on a motor highway near Adelaide was killed when

she collided with straying sheep. The rule ,of law established origin,aUy in village

England (where the fastest vehicle was ·the squire's trap) would not be disturbed for

a nation of great distances, motor highways and the internal qombustion engine.

State Government Insurance Com. v. Trigwell (1979) 25 ALR 67.

In 1979 it was held that a prisoner, McInnis, forced to defend himself in a rape

trial, was not enti,tled to legal representation as of right. He was merely privileged

to apply for'lega-(;id. His barrister' h~~ droppecl"the case the afternoon before the

trial when legal assistance was rdused. McInnes was convicted. Most civilized

countries insist on legal representation as the price of a fair trial ~n serious

criminal cases. It was felt that this was not a requirement of Australian law and

would not be made so. McInnis v. The Queen (1979-80) 27. ALR 449. (1980) 54 ALJR

122.

* In 1980 the Cpurt declined to extend the law as to the 'standing' of a party to

challenge the operation of the Iwasaki tourist resort in Queensland. The Australian

Conservation Foundation challenged the legality of the Reserve Bank and other

approvals. Although deciding which litigants it will hear is very much the busi,ness

of a court, it -was held that the duties imposed under the relevant Federal

legislation were owed to the whole community but were _not enfol"cable by private

individuals or groups. Two Justices pointed out that revision of the law of standing

had been specifically referred .to the Australian Law Reform Commission.

Australian Conservation Foundation v. Commonwealth (1980) 28 ALR 257.

Through the refusals to develop- and modernise the common law. in the _ cases mentioned

(an~ other cases) runs a common theme. It is expressed in the majority judgments (Justice

Murphy dissented in each of the above cases). It is that well established legal rules should

not be unmade by un'elected J~dges; but only by Parliament.

- 10 -

DENNING AND HIS CRITICS

Lord Denning takes quite 0. different view. But a man who turns the law so

often on its head is bound to attract criticism. In 19.71 some thought he went too far when

he held that decisions of the House of Lords not only did not bind the Lords themselves

bu~ might not bind the Court of Appeal. He could not abide a decision of the Lords which

had abol~hed punitive damages. He saw it as having 'knocked down the common law as it

had existed for centuries'. Taking two colleagues with him, he held that this rule of the

Lords 'should not be followed because the common law of England on this subject so well

settled before 1964 that it WaS not open to the House of Lords to overthrow it'.

It remained for Lord Chancellor Hailsham to deliver a sharp rebuke. 'It is

necessaryl said the Lord Chanc~nor, 'for each lower tier, including the Court of Appeal, to

accept loyally the decisions of the higher tiers'. But it is not only Denningts judicial and

more conservative legal critics who express astonishment at his views. Some believe that

Dennin~ is excessively te1eol~gical in his approach. He is charged with thinking of the

result he wants before he considers·the legal reasoning on which it has to be founded. This

process is all very well if there is agreement on the first principles that are guiding him.

But should a jUdge, near to the apex of the legal system, be able to give vent to his

personal value system, thereby disrupting settled principles and creating confusion and

uncertainty in the law? ,_,,r

-"'"During the 19605 Denning took a leading part in the assault on Ministerial and

Executive authority. He leapt to the defence of the little man taking on the bureaucracy.

He appealed to the old Bill of ~ights.25 In January 1977 he took ,part in the decision by

Which the Court of Appeal granted-an injunction on the application of a private citizen

directed at u union which, contrary to law, had u·nnounced a ban on postal services to

South Africa. 26 He rejected the claim that the Attorney-General's fiat was necessary

to permit a private citizen to bring the case.

Every individual in the land has an interest in the channels of communication

being kept open. The law shall be obeyed. Even by the powerful. Even by the

Trade Unions. We sit here to carry out the law. To see that the law is obeyed.

And that we will. do. A subject cannot disreg_ard the law with impunity. To every

SUbject in this land, no matter how powerful, I would use Thomas Fuller.'s words

over three hundred yea~s ago 'Be you never so high, the law is above you. 27

Subsequently the House of Lord~ reversed this decision holding in effect that the courts

could not question the long established rule that it was for the Attorney-General not the

courts to decide whether such actions should be brought. This very question is now under

study in the Law Reform commission in Australia. There are s'ome who say that

- 10 -

DENNING AND HIS CRITICS

Lord Denning takes quite 0. different view. But a man who turns the law so

often on its head is bound to attract criticism. In 19.71 some thought he went too far when

he held that decisions of the House of Lords not only did not bind the Lords themselves

bu~ might not bind the Court of Appeal. He could not abide a decision of the Lords which

had abolfhed punitive damages. He saw it as having 'knocked down the common law as it

had existed for centuries'. Taking two colleagues with him, he held that this rule of the

Lords 'should not be followed because the common law of England on this subject so well

settled before 1964 that it WaS not open to the House of Lords to overthrow it'.

It remained for Lord Chancellor Hailsham to deliver a sharp rebuke. 'It is

necessary' said the Lord Chanc~nor, 'for each lower tier, including the Court of Appeal, to

accept loyally the decisions of the higher tiers'. But it is not only Denning's judicial and

more conservative legal critics who express astonishment at his views. Some believe that . . Denning is excessively teleological in his approach. He is charged with thinking of the

result he wants before he considers·the legal reasoning on which it has to be founded. This

process is all very well if there is agreement on the first principles that are guiding him.

But should a judge, near to the apex of the legal system, be able to give vent to his

personal value system, thereby disrupting settled principles and creating confusion and

uncertainty in the law? ,_,,-/

During the 19605 Denning took a leading part in the assault on Ministerial and

Executive authority. He leapt to the defence of the little man taking on the bureaucracy.

He appealed to the old Bill of ~ights. 25 In January 1977 he took ,part in the decision by

Which the Court of Appeal granted-an injunction on the application of a private citizen

directed at a union which, contrary to law, had s"nnounced a ban on postal services to

South Africa. 26 He rejected the claim that the Attorney-General's fiat was necessary

to permit a private citizen to bring the case.

Every individual in the land has an interest in the channels of communication

being kept open. The law shaU be obeyed. Even by the powerful. Even by the

Trade Unions. We sit here to carry out the law. To see that the law is obeyed.

And that we will. do. A subject cannot disreg_ard the law with impunity. To every

subject in this land, no matter how powerful, I would USe Thomas Fuller.'s words

over three hundred yea~s ago 'Be you never so high, the law is above you. 27

Subsequently the House of Lord~ reversed this decision holding in effect that the courts

could not question the long established rule that it was for the Attorney-General not the

courts to decide whether such actions should be brought. This very question is now under

study in the Law Reform commission in Australia. There are s'ome who say that

- 11 -

Lord Denning's view though not perheps good law, may yet be right in. principle and

"become the law. Others assert that he is too concerned with the 'little man' and forgets

that, in the modern .state, the elected government repres~nts the mass of 'little people'

and is no longer the Crown exerting selfish overweaning power.

Other critics point to Denning's concern to uphold valiantly Christian principles

of morality and to impose them on all members of society. In one famous case, he denied

relief to a young Jtirl, Gillian Ward, who had been exp~lled from a Teachers' College after

being found with a man in her room at night.

I do not think she has been treated unfairly or unjustly.. She had broken the rules

most flagrantly. I say nothing about her morals. She claims that they are her

own affair. So be it ..,. But instead of going into lOdgings, she had this man

with her, night after night. That is a fine example to set to others! And she is a

girl training to be a teacher! She would never make a teacher. No parent would

knOWingly entrust their child to her care. 28

The same s~rong language came out in his, well known report on the lProfum 0

Affair' in 1963. He did not baulk at laying responsibility squarely on the Prime Minister

and his colleagues. The report bears the mark of his moral outrage and its impact was the

more electrifying because of this.

Those who do not complain about his 'blind sJ?ot' where matters of morality are

involved, assert that he is just a conservative member of the English rUling class who

reflects the attitudes of a Britain in which he. grew up and wl)ich was then still a great

Imperial power. Wherever an international element is involved in the case, it is said,

Denning has always come down in favour of English la\V 'and English courts to the

exclusion of· applying foreign ,law to the. parties' transactions, although recently he has

faced realistically th·e. 'incoming tide' of the law of Europe as it impacts the United

Kingdom.

What most exasperates Lord Denning's critics is what is seen to be an

idiosyncratic claim to plain talldng morality:

Lord Denning uses history as if it were a box of· goodies from which it is

pos~ible to extract all sorts of useful arguments. Whether they meant then'wha t

they can be interpreted as meaning now worries him not at ~1l. He must know

that the 19th Century was not like that. But if it were, so much the better for

his analysis of what characterises the 20th. So let's pretend. For all his private

searching in his books Lord Denning is the most unhistorical of reformers.... My

view of where the line should be drawn between judicial power and Ministerial

'power will not necessarily be that of the next man. But.it is likely that he and I

- 11 -

Lord Denning's view though not perheps good law, may yet be right in. principle and

"become the law. Others assert that he is too concerned with the 'little man' and forgets

that, in the modern .state, the elected government repres~nts the mass of 'little people!

and is no longer the Crown exerting selfish overweaning power.

Other critics point to Denning's concern to uphold valiantly Christian principles

of morality and to impose them on all members of society. In one famous case, he denied

relief to a young ~rl, Gillian Ward, who had been exp~lled from a Teachers' College after

being found with a man in her room at night.

I do not think she has been treated unfairly or unjustly .. She had broken the rules

most flagrantly. I say nothing about her morals. She claims that they are her

own affair. So be it .. ,. But instead of going into lodgings, she had this man

with her, night after night. That is a fine example to set to others! And she is a

girl training to be a teacher! She would never make a teacher. No parent would

knowingly entrust their child to her care. 28

The same s~rong language came out in his, well known report on the 'Profum a

Affair' in 1963. He did not baulk at laying responsibility squarely on the Prime Minister

and his colleagues. The report bears the mark of his moral outrage and its impact was the

more electrifying because of this.

Those who do not complain about his 'blind sl(ot' where matters of morality are

involved, assert that he is just a conservative member of the English ruling class who

reflects the attitudes of a Britain in which he_ grew up and WDich was then still a great

Imperial power. Wherever an international element is involved in the case, it is said,

Denning has always come down in favour of English la'V "and English courts to the

exclusion of -applying foreign "law to the" parties' transactions, although recently he has

faced realistically th"e" 'incoming tide' of the law of Europe as it impacts the United

Kingdom.

What most exasperates Lord Denning's critics is what is seen to be an

idiosyncratic claim to plain talldng morality:

Lord Denning uses history as if it were a box of" goodies from which it is

pos~ible to extract all sorts of useful arguments. Whether they meant then'what

they can be interpreted as meaning now worries him not at ~11. He must know

that the 19th Century was not like that. But if it were, so much the better for

his analysis of what characterises the 20th. So let's pretend. For all his private

searching in his books Lord Denning is the most unhistorical of reformers .... My

view of where the line should be drawn between judicial power and Ministerial

"power will not necessarily be that of the next man. But.it is likely that he and I

- 12 -

will agree that the line is political. I wish Lord Denning would. He plays not

only the Ace of Trumps but all his 52 cards as if God had dealt them to him.

There are other players who also have a view of justice, different though that

view may be from Lord Denning's ... 29

According to( this critic, Denning's value as an innovator cannot be denied. And when his

sympathy is aroused he can be a most formidable champion.

But his view of justice is too personal, too· idiosyncratic, too lacking in principle

for greatness. He may instruct us as he claims to do, in the principles of the

law. But the grasp of political princil?le, the insight into the nature o-f the

change that society is currently undergoing, for these he shows he shows no

special flair, no ~articu1ar understanding. 30

The controversies that have su~r6unded Denning, the law reformer in the courts, ~ersist

into his 80th and 81st years. Not only have his views on the scol?e of the privilege of

journalists given rise to comment. His observations in the jury vetting case3l also draw

a dissenting voice from the Times editorialist. This was a case where Lord Denning sought

to strike a blow for a cause' he has long championed: a new approach to ·statutory

inter~retation.The editorialist cried caution:

What Lord Denning is trying to do is to import into the interpretation of

statutory provisions the, same degree of judicial creativity as is normally

applied to developing the common law. The tradition of English law does not

su[?port that approach. It may be acceptable to introduce a qualifying element

of equity into the harsh rules of statutory constr~ction. [But] this would be,

under his formula, for the majori~y of judges to determine a sensible result.

That would be to usurp Parliament's function and give "jUdges a power which the

vast majority of them neither seek nor are capable of exercising. 32

The same editorialist two months later in May of this y.ear returned to his theme in

comments on Lord Denning's ruling about journalists' privilege:

Lord Denning, this time, is on the wrong side.... What Lord Denning has done is

to lay down a new test, based on whether a court· thinks the journalist or his

eml?loyer has acted properly and responsibly: 'If a news~aper should act

irresl?onsibly, than it forfeits its claim to protect its sources of information'.

That is neitber a logical nor a necessary criterion. It would mean that a

potential source, eveD- one who revealed a· relatively innocuous piece of

information, would be at risk of having his identity devulged because his

contact was adjudged to have acted irresponsibly. The courts are far from

- 12 -

will agree that the line is political. I wish Lord Denning would. He plays not

only the Ace of Trumps but all his 52 cards as if God had dealt them to him.

There are other players who also have a view of justice, different though that

view may be from Lord Denning's ... 29

According to( this critic, Denning's value as an innovator cannot be denied. And when his

sympathy is aroused he can be a most formidable champion.

But his view of justice is too personal, too· idiosyncratic, too lacking in principle

for greatness. He may instruct us as he claims to do, in the principles of the

law. But the grasp of political princi!?le, the insight into the nature o-f the

change that society is currently undergoing, for these he shows he shows no

special flair, no ~articu1ar understanding. 30

The controversies that have su~r6unded Denning, the law reformer in the courts, ~ersist

into his 80th and 81st years. Not only have his views on the sco!?e of the privilege of

journalists given rise to comment. His observations in the jury vetting case3l also draw

a dissenting voice from the Times editorialist. This was a case where Lord Denning sought

to strike a blow for a cause' he has long championed: a new approach to ·statutory

inter~retation. The editorialist cried caution:

What Lord Denning is trying to do is to import into the interpretation of

statutory provisions the. same degree of judicial creativity as is normally

applied to developing the common law. The tradition of English law does not

su[?port that approach. It may be acceptable to introduce a qualifying element

of equity into the harsh rules of statutory constr~ction. [But] this would be,

under his formula, for the majori~y of judges to determine a sensible result.

That would be to usurp Parliament's function and give "judges a power which the

vast majority of them neither seek nor are capable of exercising. 32

The same editorialist two months later in May of this year returned to his theme in

comments on Lord Denning's ruling about journalists' privilege:

Lord Denning, this time, is on the wrong side .... What Lord Denning has done is

to lay down a new test, based on whether a court· thinks the journalist or his

em!?loyer has acted properly and responsibly: 'If a news~aper should act

irresponsibly, than it forfeits its claim to protect its sources of information'.

That is neither a logical nor a necessary criterion. It would mean tha t a

potential source, eveD- one who revealed a· relatively innocuous piece of

information, would be at risk of having his identity devulged because his

contact was adjudged to have acted irresponsibly. The courts are far from

- 13 -

being the best judges of what is resJ?onsible journalism. Their task should be to

determine the balance of public interest, not to judge journalistic ethics. The

Court of Appeal has done a disservice to the cause of press freedom. 33

To this very day, Lord Denning is followed by adulation and calumny, praise and blame and

always controversy. Why should this be so? Because he is one of the chief proponents of

the reformist role of the English jUdge. He suffers the apl?robation of those who agree

with his decisions. He must endure the attack of those who do not. Each he accepts with

equal fortitude.

DENNING AND PARLIAMENT

There are some judges of our tradition who, for fear of being accused of

'judicial imperialism', would not even venture to criticise a statutory provision which they

felt, .in a case coming before them, worked an injustice, though it had to be applied. An

English Attorney-General told the 'House of Commons that lit is a most important

principle of our constitutional practice that jUdges do not comment on the poliey of

Parliament, but administer the law, good or bad as they find W. lit is a point of doctrine',

he declared Ion which the independence of the jUdiciary restsl.34

In 1950_, Lord Q-enning cautioned against taking this view too far. He pointed out

that the judges had oft~ called attention to laws being in need of reform. He quoted Lord

Justice Scrutton who, after wrestling with a very troublesome provision under the Rents

Acts said that he was sorry that he could not order lthe costs to be paid by the draftsman

of the Rent Restrictions Acts and the members of the Legislature who passed them and

. are responsible for the obscurity. of the Acts\35 Obviously, Denning shared this view:

I do not myself see why responsible comments or suggestions ·on the way in

which Acts work, intended only in the pUblic interest should be regard as an

infringement of the sovereignty of Parliameot~ This applies flot only in respect

of law laid down by Judges or enactments of Parliament in ancient times, but

also in respect of enactments in modern times, subject to the qualification that

the Judges must never comment in disparaging terms on the policy of

Parliament, for that would be-to cast reflection upon the wisdom of Parliament

and that would be inconsistent with the confidence and respect which should

subsist -between Parliament and the JUdges. Just as members of Parliament

must oot cast reflections on the conduct of Judges, so Judges must not cast

reflections on the conduct of Parliament. If everyone observes these rules,

there will be no conflict.36

- 13 -

being the best judges of what is resJ)onsible journalism. Their task should be to

determine the balance of public interest, not to judge journalistic ethics. The

Court of Appeal has done a disservice to the cause of press freedom. 33

To this very day, Lord Denning is followed by adulation and calumny, praise and blame and

always controversy. Why should this be so? Because he is one of the chief proponents of

the reformist role of the English judge. He suffers the ap!?robation of those who agree

with his decisions. He must endure the attack of those who do not. Each he accepts with

equal fortitude.

DENNING AND PARLIAMENT

There are some judges of our tradition who, for fear of being accused of

'judicial imperialism', would not even venture to criticise a statutory provision which they

felt, .in a case coming before them, worked an i.njustice, though it had to be applied. An

English Attorney-General told the 'House of Commons that 'it is a most important

principle of our constitutional practice that judges do not comment on the poliey of

Parliament, but administer the law, good or bad as they find it'. 'It is a point of doctrine',

he declared 'on which the independence of the judiciary rests,.34

In 1950., Lord Qenning cautioned against taking this view too far. He pointed out

that the judges had oft~ called attention to laws being in need of reform. He quoted Lord

Justice Scrutton who, after wrestling with a very troublesome provision under the Rents

Acts said that he was sorry that he could not order 'the costs to be paid by the draftsman

of the Rent Restrictions Acts and the members of the Legislature who passed them and

. are responsible for the obscurity of the Acts,.35 Obviously, Denning shared this view:

I do not myself see why responsible comments or suggestions ·on the way in

which Acts work, intended only in the public interest should be regard as an

infringement of the sovereignty of Parliament. This applies 1'10t only in respect

of law laid down by Judges or enactments of Parliament in ancient times, but

also in respect of enactments in modern times, subject to the qualification that

the Judges must never comment in disparaging terms on the policy of

Parliament, for that would be·to cast reflection upon the wisdom of Parliament

and that would be inconsistent with the confidence and respect which should

subsist between Parliament and the Judges. Just as members of Parliament

must not cast reflections on the conduct of Judges, so Judges must not cast

reflections on the conduct of Parliament. If everyone observes these rules,

there will be no conflict.36

- 14 -

In Australia many have been the cases where judges have called to notice particular

provision. Yet these provisions have remained unreformed, sometimes for decades. JUdges

have complained about the lack of attention shown to their curial pronouncements about

the defects and injustices in Parliament's legislation.37 The special service which an

experienced judge can perform in calling t~e need for reform to official notice was

recently described by the Chief Justice of Australia, Sir Garfield Barwick, addressing a

jUdicial conference in Sydney:

If the jUdicial function is concerned, as I would· think it is, intensely concer~ed

with the attainment of justice, it may not be enough that defects and

inadequacies in the law which custom or the legislature has provided are seen

and publicly observed upon, perhaps only in litigation inter partes. The pressing

need for change is. so often only disclosed by the circumstances of a particUlar

case iOn the experience of the judge. That tJe should be alert to observe and

identify that need is part of his pursuit of justice. Merely to call attention' to

the deficiencies in the course of delivered jUdgment may be felt to be.

insufficient. What is the desirable course for the jUdge who has perceived the

need for ameliorating 'change? May it n'ot be that some means or formalised

apparatus sh6uld be available to the initiative of the jUdiciary whereby the

legislature can directly beepprised of the observed defects and inadequa~ies of

the- substantive;"'law or of the procedural lilw and pe-rhaps the executive be

furnished by t1(;judge with ideas as to the likely ways of its amendment. 3.8

The Australian Law' Reform Commission in its successive Anmial Reports has called

attention to the need for a centralised collection of judicial, academic, parliamentary and

citizen suggestions· for -reform of the law~ A Ministerial st8:tement tabled in Parliament by

Senator Durack the Commonwealth Attorney-General has given initial approval to this

project.39 In the ~irst instance it will be limit~d to Commonwealth a~d Territory legal

concerns though it may in due course be extended to the States. The first report will be

contained in the '1980 Annual Report of the Law: Reform Commission. We hope that

succeeding annual reports can collect suggestions and bring them effectively to the notice

of the lawmakers. With a growing perception of the utility of suggesting improvements to

the law, it may be' hoped that more will feel a responsibility to take a part in this

important function. I fe.el su.re that Lord Denning would embrace with enthusiasm this

bold and novel idea; whilst not aband.oning for a moment his claim (where appropriate) not

to trouble r:'arliame,nt with the suggestion: but to set to, and reform the la~ himse~f.

- 14 -

In Australia many hnve been the cases where judges have called to notice particular

provision. Yet these provisions have remained unreformed, sometimes for decades. Judges

have complained about the lack of attention shown to their curial pronouncements about

the defects and injustices in Parliament's legislation.37 The special service which an

experienced judge can perform in calling t~e need for reform to official notice was

recently described by the Chief Justice of Australia, Sir Garfield Barwick, addressing a

judicial conference in Sydney:

If the judicial function is concerned, as I would· think it is, intensely concer~ed

with the attainment of justice, it may not be enough that defects and

inadequacies in the law which custom or the legislature has provided are seen

and publicly observed upon, perhaps only in litigation inter partes. The pressing

need for change is, so often only disclosed by the circumstances of a particular

case i'n the experience of the judge. That tJe should be alert to observe and

identify that need is part of his pursuit of justice. Merely to call attention' to

the deficiencies in the course of delivered judgment may be felt to be,

insufficient. What is the desirable course for the judge who has perceived the

need for ameliorating 'change? May it n'ot be that some means or formalised

apparatus sh6uld be available to the initiative of the judiciary whereby the

legislature can directly be apprised of the observed defects and inadequa~ies of

the- substantive;,,'law or of the procedural law and pel'haps the executive be

furnished by tJrejudge with ideas as to the likely ways of its amendment. 38

The Australian Law' Reform Commission in its successive Anmial Reports has called

attention to the need for a centralised collection of judicial, academic, parliamentary and

citizen suggestions· for -reform of the law. A Ministerial stB:tement tabled in Parliament by

Senator Durack the Commonwealth Attorney-General has given initial approval to this

project.39 In the ~irst instance it will be limit~d to Commonwealth a~d Territory legal

concerns though it may in due course be extended to the States. The first report will be

contained in the '1980 Annual Report of the Law Reform Commission. We hope that

succeeding annual reports can collect suggestions and bring them effectively to the notice

of the lawmakers. With a growing perception of the utility of suggesting improvements to

the law, it may be' hOl?ed that more will feel a responsibility to take a part in this

important function. I fe.el su.re that Lord Denning would embrace with enthusiasm this

bold and novel idea; whilst not aband.oning for a moment his claim (where appropriate) not

to trouble r:'arliame,nt with the suggestion: but to set to, and reform the la~ himse~f.

- 15-

THE WAY OF THE ICONOCLAST

Whethe~ lawyers are scandalised" by Denning or admire his persistence, courage

and reforming zeal, he is not a man who can be ignored. Even today, at 81, he continues to

have .on influence on the life of the c0'!1mon law. We live in n time of change and people

expect j'Jdges to mee~ the challenges of change. Leaving every reform to Parliament will

simply ·not do. Denning reminds us of the original genius of the common law: adapting the

.law's reasonable predictability and certainly to the new times.

'What then is the way of an iconoclast?' he once asked an Oxford 8Qdience. lit is

the way of one who is .not content to accept cherished beliefs simply because they have

been long accepted. If he finds that they are not suited to the times or that they work

injustice, he will see whether there is not some competing principle which can be applied

in the case in hand. He will search the old-cases, and the "writers old and new, until he

finds it. Only in this way can the ~aw be saved from stagnation and decay'.

Reformer or Mischief-maker? Revolutionary judge or maverick? Iconoclast or

harsh moralist?-One thing is certain, Lord Denning is a towering figure of the common law

today. His passion for justice and reform has lessons for us all.

- 15-

THE WAY OF THE ICONOCLAST

Whethe~ lawyers are scandalised" by Denning or adtnire his persistence, courage

and reforming zeal, he is not a man who can be ignored. Even today, at 81, he continues to

have .on influence on the life of the c0'!lmon law. We live in n time of change and people

expect j'Jdges to mee~ the challenges of change. Leaving every reform to Parliament will

simply ·not do. Denning reminds us of the original genius of the common law: adapting the

.law's reasonable predictability and certainly to the new times.

'What then is the way of an iconoclast?' he once asked an Oxford 8Qdience. 'It is

the way of one who is _not content to accept cherished beliefs simply because they have

been long accepted. If he finds that they are not suited to the times or that they work

injustice, he will see whether there is not some competing principle which can be applied

in the case in hand. He will search the old-cases, and the·writers old and new, until he

finds it. Only in this way can the ~aw be saved from stagnation and decay'.

Reformer or Mischief-maker? Revolutionary judge or maverick? Iconoclast or

harsh moralist?·One thing is certain, Lord Denning is a towering figure of the common law

today. His passion for justice and reform has lessons for us all.

- 16-

FOOTNOTES

1. See G.· R~id 'The Changing Political Framework', now published in Quadrant

'(January/February 1980) 5. See also (1978) Reform 23; [l979J Reform 16 nnd

[1980] Reform 45.

2. This is a reference to His Excellency th~ Hen Mr Justice R.E. Fox,

Ambassador-At-Large for Nuclear Affairs.

3. Reid, id.

4. g. v. Kirby; ex ~arte Boiler Makers' Society of Australia (1956) 94 CLR 254.

5. See C. Howard, 'Australian Federal Constitutional Law' (2nd ed.) 1972, 135ff.

6. g. v. Richards; ex parte Fitzpatrick and Browne (1955) 92 CLR 157.

7. Lord Justice Denning, 'The Independence of the Judges' in D.W. Harvey (ed'>,.

'The Lawyer and Justice' (Holdsworth Lecture 1950) 53, 58.

8. F.X~ Connor, 'The Use of JUdges in Non-Judicial Roles' (1978) 52 ALJ 482; Sir

Murray McInerney, 'The A[)pointment of JUdges to Commissions of Inquiry and

Other Extra-judicial Activities! (1978) 52 ALJ 540 and r<:.G. Brennan, 'Limits on

the Use of JUdges' (1978) 9 Fed. Law Rev. 1. See also [l979J Reform 17.

9. Brennan, 3.

10. Brennan, 14.

11. Lord Justice Denning in Park~r v. Parker (1954) P.lS, 22.

12. The Times (London) 3 March 1980.

13. As reported in Newsweek, .26 May 1980, 23.

14. Lord Denning, The Due Process of Law, (I980) 250-1.

15. ibid, 24~.

16. Lord Denning, Address. to the Law. Society's National Conference,' Jersey,

October 1979, (1979) 76 Guardian Gazette~ 1057.

- 16-

FOOTNOTES

1. See G.· R~id 'The Changing Political Framework', now published in Quadrant

'(January/February 1980) 5. See also (1978) Reform 23; [1979J Reform 16 nnd

[1980J Reform 45.

2. This is a reference to His Excellency th~ Hon Mr Justice R.E. Fox,

Ambassador-At-Large for Nuclear Affairs.

3. Reid, id.

4. g. v. Kirby; ex ~arte Boiler Makers' Society of Australia (1956) 94 CLR 254.

5. See C. Howard, 'Australian Federal Constitutional Law' (2nd ed.) 1972, 13sff.

6. g. v. Richards; ex parte Fitzpatrick and Browne (1955) 92 CLR 157.

7. Lord Justice Denning, 'The Independence of the Judges' in D.W. Harvey (ed'>,.

'The Lawyer and Justice' (Holdsworth Lecture 1950) 53, 58.

8. F.X. Connor, 'The Use of Judges in Non-JUdicial Roles' (1978) 52 ALJ 482; Sir

Murray McInerney, 'The A[)pointment of Judges to Commissions of Inquiry and

Other Extra-judicial Activities' (1978) 52 ALJ 540 and r<:.G. Brennan, 'Limits on

the Use of Judges' (1978) 9 Fed. Law Rev. 1. See also [1979J Reform 17.

9. Brennan, 3.

10. Brennan, 14.

11. Lord Justice Denning in Park~r v. Parker (1954) P.IS, 22.

12. The Times (London) 3 March 1980.

13. As reported in Newsweek, .26 May 1980, 23.

14. Lord Denning, The Due Process of Law, (I980) 250-1.

15. ibid, 24~.

16. Lord Denning, Address. to the Law. Society's National Conference,' Jersey,

October 1979, (1979) 76 Guardian Gazette~ 1057.

- 17 -

17. Lord Denning, The Discipline of Law, 1979, 315.

18. Liverpool City Council v. Irwin [l976J I QB 319 a1> 332.

20. . J.A.G. Griffith, Book Review ('The Discipline of the Law') in (1979) 42 Mod. L.

Rev. 348.

21. C.H. Gage, Book Review, (1980) 39 Cambridge LJ 194. See also review by T.

Harper (1979) 129 New LJ 83.

22. . . Candler v. Crane, Christmas &: Co. [1951] 2 KB 164 at 178.

23. Hedley Bvrne&: Co. Ltd. v. Heller &: Partners Ltd. [1964J Ac 465.

24. Mutual Life and Citjzens' Assurance Co. Ltd. v. Evatt [1971] AC 793.

25. Attorney-General v. Independent Broadcasting Authority (I973] QB 629.

26. Gouriet v. Union of Post Office Workers [I977] 2 WLR 310.

27. id, at 317.

28. Ward v. Bradford Corporation (1972) 70 LGR 27.

29. Griffith, 349.

30. ibid, 350.

31. !!:. v. Sheffield Crown Court; ex parte Brownlow, unreported, Times Law

Reports, 3 March 1980.

32. The Times (London) 3 March 1980.

33. The Times (London) 8 May 1980.

34. Cited by Lord Denning in his Holdsworth Lecture.) 63.

35. ibid, 66•

.36. id, 66.

'-'

- 17 -

17. Lord Denning, The Discipline of Law, 1979, 315.

18. Liverpool City Council v. Irwin [1976J I QB 319 a1> 332.

20. . J.A.G. Griffith, Book Review ('The Discipline of the Law') in (1979) 42 Mod. L.

Rev. 348.

21. C.H. Gage, Book Review, (1980) 39 Cambridge LJ 194. See also review by T.

Harper (1979) 129 New LJ 83.

22. . . Candler v. Crane, Christmas &: Co. [1951] 2 KB 164 at 178.

23. Hedley Bvrne&: Co. Ltd. v. HeUer &: Partners Ltd. [1964J Ac 465.

24. Mutual Life and Citjzens' Assurance Co. Ltd. v. Evatt [1971] AC 793.

25. Attorney-General v. Independent Broadcasting Authority (I973] QB 629.

26. Gouriet v. Union of Post Office Workers [1977] 2 WLR 310.

27. id, at 317.

28. Ward v. Bradford Corporation (1972) 70 LGR 27.

29. Griffith, 349.

30. ibid, 350.

31. !!:. v. Sheffield Crown Court; ex parte BrownlOW, unreported, Times Law

Reports, 3 March 1980.

32. The Times (London) 3 March 1980.

33. The Times (London) 8 May 1980.

34. Cited by Lord Denning in his Holdsworth Lecture.) 63.

35. ibid, 66 .

. 36. id, 66.

- 18-

37. Mr Justice Fox (1974) 48 ALJ 416. See also (1948) 64 LQR 171 and the

Australian Law Reform Commission, Annual Report 1976 (ALRC 5) 33.

38. Sir Garfield Barwick, Speech to the Opening of the Second Conference of

Appellate JUdges, Sydney, May 1980 reported in [1980] Reform 76.

39. P.D. Durack, Ministerial statement Commonwealth Parliament Debates

(Senate) 15 May 1980 2295.

,,,'./

-.

- 18-

37. Mr Justice Fox (1974) 48 ALJ 416. See also (1948) 64 LQR 171 and the

Australian Law Reform Commission, Annual Report 1976 (ALRC 5) 33.

38. Sir Garfield Barwick, Speech to the Opening of the Second Conference of

Appellate Judges, Sydney, May 1980 reported in [1980] Reform 76.

39. P.D. Durack, Ministerial statement Commonwealth Parliament Debates

(Senate) 15 May 1980 2295.

,,,' /.

-.